HIGGINS and PAWN
[2016] FCWA 126
•28 NOVEMBER 2016
JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA
ACT: FAMILY COURT ACT 1997
LOCATION: SUPPRESSED
CITATION: HIGGINS and PAWN [2016] FCWA 126
CORAM: THACKRAY CJ
HEARD: 28 NOVEMBER 2016
DELIVERED : 28 NOVEMBER 2016
FILE NO/S: PTW 2317 of 2007
BETWEEN: MS HIGGINS
Applicant
AND
MR PAWN
Respondent
Catchwords:
CHILDREN - With whom a child lives - With whom a child spends time - Significant weight placed upon the child's views against the continuation of a week-about arrangement - Order for equal shared parental responsibility - Order for the child to spend every third week with the mother - Further orders made in the event that the mother relocates.
Legislation:
Family Court Act 1997 (WA), s 66C, s 70A
Category: Not Reportable
Representation:
Counsel:
Applicant: No appearance
Respondent: Ms F
Independent Children's Lawyer : Ms S
Solicitors:
Applicant: Self Represented Litigant
Respondent: Law Firm A
Independent Children's Lawyer : Law Firm B
Case(s) referred to in judgment(s):
Nil
WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL
JUDGMENT - PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN
CHANGED
1These proceedings concern the welfare of [L], who was born [in] 2005 and is therefore now 11 years of age. L’s parents are [Ms Higgins] (“the mother”) and [Mr Pawn] (“the father”). Unfortunately, there is a highly conflictual relationship between the mother and the father and they have been involved in disputation about L almost since their separation in 2006.
Background
2The mother and the father lived together between October 2004 and October 2006. The mother fell pregnant with L soon after she moved into the father’s home and then she moved out when L was about 18 months old. The father was not content with the amount of time he was able to spend with L and commenced proceedings in the Family Court in May 2007. During the course of those early proceedings, a report was prepared by a single expert, [Dr C].
3The matter proceeded to trial in March 2008. After three days of hearing, the parties reached an agreement that the father was to spend increasing amounts of time with L until, by the time she was 4 years of age, she would spend equal holiday time with each parent and, by the time she was in Year 1, she would live with them on a week-about basis.
4An order was also made by consent for the parents to have equal shared parental responsibility. At the time, both parties were living in [Coastal Town B]. The mother also had living with her a son from a previous relationship, [J], who is nearly 18 years of age.
5The mother left Coastal Town B in 2012, claiming that she had been the victim of a serious sexual assault. Initially, she lived in Perth, then in [Coastal Town A], then in [Suburb A] near [Suburb B]. L remained living in Coastal Town B with her father, but the mother returned to Coastal Town B sporadically in order to spend time with L.
6Although the mother failed to provide the father with direct or adequate notice of her return, he nevertheless accommodated the mother’s desire to spend time with L when the mother was in Coastal Town B. According to the father’s evidence, which is unchallenged, L was in the father’s care between 60 to 70 per cent of the time.
7During 2012, the mother’s son, J, moved to live with his father. There has been a complete breakdown in the relationship between the mother and J and they have had no contact whatsoever for many years. The father in these proceedings always enjoyed a good relationship with J and has continued, during his visits to Perth, to meet up with J and also to ensure that L and J remain in contact, both by face-to-face visits and by regular electronic communication.
8In 2012, the mother was charged with breaking into a home in which J was then staying with his grandmother. In late 2014, the mother came to Coastal Town B to spend time with L and then, as had been predicted by Dr C, removed L from Coastal Town B and took her to Perth.
9On 26 November 2014, the mother commenced proceedings for L to live with her in Perth. In the course of making that application, the mother made allegations that the father, amongst other things, had exposed L to sexual abuse and failed to attend to her medical needs. These complaints were later found to be unsubstantiated by the Department for Child Protection and Family Services.
10On 5 January 2015, the father filed an application for a recovery order in the [local] Magistrates Court. The proceedings were transferred to Perth, where an order was made on 19 January 2015 for L to be returned to the father and for the week-about arrangement to be reinstated.
11The mother was ordered to give the father at least seven days’ notice in writing if she was not going to exercise time with L pursuant to the previous order. An order was also made restraining the mother from allowing L to share a room with her and the mother’s partner, [Mr U]. After the making of the orders in January 2015, the mother continued to return to Coastal Town B from time to time to spend her time with L. It would appear that this was not less than once a month.
12In October 2015, the father’s current wife, who comes from [Asia], moved to live in Coastal Town B with the father and L. Her son, now aged 12 years, came with her. The father commenced a relationship with his wife during 2011 and visited her in Asia prior to her taking up residence in Australia. They were married [in] 2016.
13In December 2015, a report was published by [Dr N], who had been appointed as the single expert witness in these proceedings. Dr N reported that L had told her about difficulties in the week-about arrangement, which was not working for her.
14On about 22 May 2016, the mother returned to live in Coastal Town B. She has thereafter spent time with L in accordance with the terms of the existing order, which of course can be traced back to those proceedings in 2008. On 24 May 2016, which was probably a couple of days after the mother returned to Coastal Town B, the Independent Children’s Lawyer spoke with L.
15The Independent Children’s Lawyer says that L expressed a wish to spend equal time with each parent and was excited about her mother returning to Coastal Town B to live. On 5 October 2016, the mother filed a Notice of Discontinuance of her application for L to come to live with her. She failed to attend the readiness hearing on 7 November 2016 and failed to comply with orders made in 2016 for the filing of affidavit evidence in relation to L’s future living arrangements.
16Although she was advised of today’s hearing date by the Independent Children’s Lawyer after the readiness hearing, the mother has also not attended court today. I am satisfied by reference to Exhibit 1 that the mother is on notice in relation to the continuation of these proceedings and has simply elected not to take part.
17On 9 November 2016, at the request of the Magistrate who conducted the November 2016 readiness hearing, [the] Family Consultant interviewed L and provided a report to the court. The Magistrate had ordered that the report, in the first instance, be distributed only to the Independent Children’s Lawyer, but today I gave permission for it to be distributed to the father and his legal representatives.
The parties’ proposals
18I turn now to the competing proposals of the parties and the Independent Children’s Lawyer. The father proposes that the existing orders be varied so as to provide that L will spend 10 days with him and four days with the mother. All but one of the mother’s days with L would be on the weekend. As the mother has no application before the court and has failed to attend today’s hearing, it is unknown what she is seeking, but it can be assumed that, at the very least, she wishes to maintain the existing equal shared-care arrangement.
19[Ms S], the Independent Children’s Lawyer, also proposes a continuation of the existing shared-care arrangement. She is content to agitate for the current week-about arrangement, but if the court is not minded to make such an order, then she would propose a fortnight-about arrangement.
20As there are doubts about whether the mother will remain in Coastal Town B, particularly if the father is successful in these proceedings, both the father and the Independent Children’s Lawyer have given consideration to the amount of time that the mother should spend with L if the mother ceases to reside in Coastal Town B. The father proposes that, in that event, L would spend one week each term with the mother if she came to Coastal Town B, as well as the sharing of school holidays. The Independent Children’s Lawyer proposes the mother would spend at least one week a month with L as well as time during the school holidays.
The law
21I turn now to the law. These proceedings are governed by the Family Court Act 1997 (WA) (“the Act”), which makes the best interests of L the paramount consideration. In deciding what orders to make, I must be guided by the objects of the Act and the principles underlying them, which indicate that children’s best interests are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
22Section 70A requires a court to apply a presumption that it is in a child’s best interests for the parents to share parental responsibility equally unless there are reasonable grounds to believe that either parent, or a person who lives with them, has engaged in child abuse or family violence as defined in the Act. Furthermore, the presumption may be rebutted by evidence that it would not be in the child’s best interests for the parents to have equal shared parental responsibility.
23The allocation of parental responsibility does not govern the time that the child will spend with each party. However, if an order is made for equal shared parental responsibility, then the Act requires me to consider whether spending equal time or, failing that, substantial and significant time with each parent would be in the child’s best interests. If either alternative is in the child’s best interests, then I must consider making such an order provided I have found the arrangement to be reasonably practicable.
24In determining what is in the child’s best interests, I must consider the matters in s 66C of the Act. These are divided into primary considerations and additional considerations, but the law is now well settled that the primary considerations do not necessarily outweigh any combination of the additional considerations.
25Regrettably, I have to say, the Independent Children’s Lawyer’s submissions demonstrated a fundamental misunderstanding of the law. Lest there be any suggestion that I have not correctly understood her submissions, I will set out the opening paragraphs of the written submissions from which the Independent Children’s Lawyer read orally today (original emphasis):
Your Honour, the requirements of the legislation are set out in s65DAA Family Law Act 1975 and s89AA Family Court Act 1997.
For an equal time order the court should take into consideration
a)consider whether the child spending equal time with each of the parents will be in the best interests of the child.
b)consider whether the child spending equal time with each of the parents is reasonably practicable.
c)if it considers making an order to provide for the child to spend equal time with each of the parents.
NOTE 1: The effect of Section 60CA is that in deciding whether to go on to make a parenting order for the child to spend equal time with each of the parents, the court will regard the best interest of the child as the paramount consideration.
APPLICATION of the Legislation:
The father’s minute seeks equal shared parental responsibility and there is no allegation by the father that the mother has negated or rebutted the presumption of equal parental shared responsibility. Therefore the mother should be entitled to get equal time and/or substantial significant time.
It would be in [L]’s best interest for the court to order equal time and substantially significant time.
26When I suggested to the Independent Children’s Lawyer that she had misunderstood the law, the Independent Children’s Lawyer assured me that she understood that the determination of the amount of time L should spend with each parent was governed by her best interests, which, of course, is correct. It is quite incorrect, however, to assert, as the Independent Children’s Lawyer did in her submissions, that because the presumption in favour of equal shared parental responsibility was not rebutted, the mother should be entitled to equal time or substantial and significant time.
Proposed living arrangements
27I turn now to the parents’ proposed arrangements for L. The father is 59 years of age. In the past, he has been a [porter] at [a hotel] and he has also worked in, and become a director of, a local company. He gave up that employment in 2006 and thereafter had stable employment as a [service operator] here in Coastal Town B. Earlier this year, the father retired from that employment and now has plans to operate a business around Coastal Town B. He has continued to live in the same residence and has demonstrably well-settled arrangements for the care of L. He is not dependent upon his new wife for L’s physical care, although L enjoys what appears to be a very good and important relationship with his wife and with her son. The father makes what otherwise appear to be excellent arrangements for L’s education, health and extracurricular activities.
28The mother is 46 years of age. As she has placed no evidence before the court, I am unaware of her current employment. She appears to be living in what would seem to be a de facto relationship with Mr U, who is a fly-in fly-out worker. Otherwise, I know nothing about Mr U, other than the fact that Dr N described L’s relationship with him as comfortable, having observed them together. There is nothing in the evidence to suggest that Mr U is anything other than a positive influence in L’s life.
29Apart from issues concerning the mother’s behaviour and personality, my major concern about the mother’s proposals for the care of L is that I know nothing about them whatsoever. In particular, the court has not been provided with any evidence about the mother’s accommodation arrangements for L and hence, for example, I am unaware of whether she is complying with the order requiring her to ensure that L is not sleeping in the same bed as her and Mr U.
30The Independent Children’s Lawyer has told me today that she once saw a lease relating to property the mother was occupying in Coastal Town B, but she has been unable to locate that document amongst the papers she brought with her to court today. The father’s solicitor informed the court that she has previously sought a copy of the lease, but it has not been forthcoming. It is entirely unclear whether the lease agreement is for the whole of the home or for only part of it.
31In her interview with the Family Consultant on 9 November 2016, L said that the mother was living in “a spare room at her friend’s house”. L is 11 years old and has been described by at least two independent sources as being mature beyond her years. It would be very surprising if she had misunderstood her mother’s current living arrangements.
32At first glance, it is also surprising that the father has been unable to give his solicitors any information about L’s arrangements when living with her mother. It might have been expected that L would have said something to her father about the circumstances in her mother’s home. However, given the animosity between the parents, it is appropriate that the father has not sought to cross-examine L about the living arrangements in her mother’s home.
33The Independent Children’s Lawyer was of the opinion that L would have told her father if there was anything untoward about the living arrangements. However, regrettably, the Independent Children’s Lawyer has what I respectfully consider to be a rather simplistic understanding of the complexities in the relationships within this family, demonstrated by her concession that she had not given any thought to the possibility that L’s various statements and wishes about where she wanted to live might have been influenced by L’s fear of her mother’s reaction in the event that she made a statement adverse to her mother’s interests.
34Given the obvious volatility in the mother’s personality and behaviour, I would respectfully suggest that this ought to have been just about the first thing the Independent Children’s Lawyer would have considered. Had the Independent Children’s Lawyer given thought to such matters, she would have readily realised why, for example, L might not disclose to her father unsatisfactory living conditions in her mother’s home.
35Returning, then, to the mother’s proposals, it would seem that they do not involve L being taken to extracurricular activities, and certainly not those arranged by the father. The father gives evidence of the mother’s refusal to ensure L’s participation in such activities, and he attached to his affidavit a message from the mother in which she said, “she will not b attending any afta school activities. She needs time wit me! Why not get her into active programs to help wit her weight” [sic].
36The father had enrolled L in netball, but the mother was apparently opposed to this activity. In any event, the message from the mother to the father went on to say, “Thats drama singing nor piano. Dont ever ask for an extra day ... When yur mum dies whenever i dont care dont even ask” [sic]. This was followed by a message saying, “Fuk off cunt. Take me to court” [sic].
Primary considerations
37I turn now to the primary considerations I am required to take into account under the Act. There are two primary considerations, one of which, that is “the need to protect the child from physical or psychological harm”, must be afforded greater weight than the other, which is “the benefit to the child of having a meaningful relationship with both of the child’s parents”.
38I am convinced that there is benefit to L of having a meaningful relationship with each of her parents. Her father has been a loving and steadying influence throughout her life. There is ample evidence of this in the material before the court, going right back to the first report by Mr C when L was only a very little girl. Mr C wrote:
[L] is just over 2 years old and was not interviewed for the purpose of this assessment. She was however seen with her father 12/02/08 and upon arrival rushed straight into her father’s arms, obviously enamoured and talking to him showing no interest in the Single Expert Witness.
[Mr Pawn] arrived with a blanket and a bag of toys. [L] asked him lots of questions and discussed a variety of topics obviously of great familiarity. On a number of occasions they sang songs, [L] spontaneously answering the songs at the same time jumping into her father’s arms.
[L] showed herself to be quite aware of what was going on around her giving an explanation of why she was soon to move child care because [Ms H] was there.
There was quite a bit of banter about drinking water in which [Mr Pawn] reminded her of what they always say to which she replied “water the best drink, the best medicine”.
When [L] went to see where her mother had gone from the waiting room and saw that she had left she showed no concern and rushed straight back into her father’s arms.
They then sat down on the floor, [L] painted her father’s fingernails and toe nails with nail polish. There was free flowing chatter between them and [L] on multiple occasions made spontaneous physical contact with her father. [Mr Pawn] was well prepared for the session bringing his own water, toys and they played familiar games. [Mr Pawn] took [L] to the toilet. At the end of the session [L] was quite upset and attempted to delay leaving her father. She asked on multiple occasions whether she could go with her father. [Mr Pawn] became quite upset himself but hid it from [L] and behaved appropriately telling her that she needed to go to her mother and that he would see her again in the future.
In summary [Mr Pawn] and [L] have an extremely good relationship. There is a lot of familiarity about the simple things they do and play together such as songs and games. [L] is very enamoured with her father making spontaneous physical contact on a number of occasions during the session.
39L’s love for her father has been apparent throughout the court proceedings, as evidenced by the reports not only of Mr C, but also Dr N and the recent report from the Family Consultant. It is apparent that this relationship between father and child is of immense importance to L and I perceive that it will continue regardless of whatever order I ultimately make.
40L’s relationship with her mother is also of utmost importance. Whatever may be said of the mother’s personality and behaviour, she has demonstrated throughout her love for her daughter and her desire to be an important part of her life. This was shown, for example, by her making numerous trips to Coastal Town B when she was living elsewhere in order to maintain her relationship with her daughter. Given that it appears the mother does not enjoy anywhere near the financial security that the father apparently enjoys, this must have been particularly onerous for the mother. L is enormously appreciative of the trouble her mother has taken and is incredibly anxious to maintain their loving relationship.
41L has already seen what has happened to the relationship the mother had with her only other child and, being a mature and intelligent girl, no doubt recognises that there is at least the theoretical possibility that her relationship with her mother could go in the same direction. Accordingly, I consider it of utmost importance to L that she maintains a meaningful relationship with her mother.
42I turn to the second primary consideration, “the need to protect the child from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence”. Notwithstanding allegations that have been bandied around in these proceedings, I am not satisfied there is any evidence to suggest that L will be subjected to or exposed to abuse, neglect or family violence. I note, for example, the very positive statements made in the affidavit of the principal of [School M] in Coastal Town B, which L attends.
43The principal, [Mr P], reports that L always attends school well groomed and with a neat appearance. He further noted that none of the teachers have any concern relating to her education, welfare or socialisation with other children. The principal further reported that L’s wellbeing and demeanour does not appear to be different depending on which parent she is staying with. Interestingly, L has never mentioned to the school social worker that her parents are separated and she does not usually discuss with teachers who she is staying with.
44Mr P further reports that the father is considered to be a very proactive parent from the Year 6 cohort. He is highly involved in fundraising and volunteering, and he comes to all parent-teacher meetings. Mr P said that when the mother is in Coastal Town B, she has attended parent-teacher meetings and school events, and has shown a genuine interest in L’s education.
45All of this reflects very well on both parents and must be taken into account when reflecting on my earlier concerns about the absence of any real evidence of the arrangements the mother is making for L’s accommodation and care.
Additional considerations
(a) any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;
46There are now a number of sources of information available to me concerning L’s views about where she wishes to live and her views about her parents. First, there is the report of Dr N, which was prepared on the basis of interviews with L and the mother and the father in September 2015, which was at a time when the mother was still living in Perth. Nevertheless, it is important to recognise that the mother reported she was still travelling frequently to see L in Coastal Town B.
47On the father’s calculations, in 2015 L spent 36 per cent of her nights with her mother, albeit 22 of these nights were in January and February 2015 after the mother had retained L in breach of the earlier consent order. Dr N reported that when she saw her,
[L] impressed as having a very good grasp about the living arrangements and reported that there is a week on and week off arrangement between the parents. She reported that, despite this, “sometimes mum misses some weeks”.
48Interestingly, when asked to tell Dr N something about her family, L spoke only of her father and her maternal and paternal grandparents, but did not speak of her mother without prompting by Dr N. Dr N also reported:
51.[L] reported that she likes that her dad manages the transitions between parents well, and that he is a really good cook. She reported that most days he is fine but that she dislikes that he can sometimes be grumpy. She reported that she likes that her mother is motherly. She reported that what she disliked about her mother depends on the day (and what her mother is like). She reported that most days she has fine days with her mum, but that sometimes she does not appear to pay attention to her and ‘zones out’. She reported that she tends to alter the way she is and the way she feels dependent on whether she is with her mother or with her father.
…
54.[L] reported that now that she is older she has an idea of what is going on between her parents and she is shocked. She reported she is somewhat used to transitioning between houses each week “but there are some things you never get used to. You’re never stable, I just try to get on with my day”. She reported that she can hear her parents fighting on the phone and I know that it is about the Family Court and access to her. She reported “even if they are not fighting, I know something is going on and I might be down for a day and then I try to pick myself up”.
…
121.[L] was clear when discussing her living arrangements. She appears to have put a lot of thought into it. She presented as balanced in her view and impressed as not wanting to hurt her parent’s feelings. [L] first discussed how a friend of hers has a similar situation where one parent resides in [Coastal Town B] and one in Perth. She reported that those parents had negotiated together so that her friend could spend half the year in a school in [Coastal Town B] and half the year in a school in Perth. She then wondered how school holidays would work. She then started going through various scenarios about what may work for her – alternating years living with a parent for instance. She then lamented that the transitions would be difficult as she would miss the parent she was not with. She reported she currently gets upset around the transitions.
122.[L] reported that the week on/week off is not working for her. She reported that her mother wants her to move to Perth but [L] was very clear that she does not want this. She reported she would miss her friends and does not want to leave [Coastal Town B]. She reported that her mother has told her she would not move to [Coastal Town B] and this is somewhat upsetting to [L]. She reported “it was easier when she [the mother] lived in [Coastal Town B]”. [L] declined to provide her ideas about how she felt the arrangements would work best for her, citing not wanting to hurt feelings.
…
123.From the information available, the wishes of the child appear to have been impacted by the conflict between the parents and her not wanting to hurt either of their feelings. It would appear from what [L] discussed in the interview that the mother has been promoting the idea of [L] moving to Perth and [L] was clear that this is not something that she wants.
49The father’s Papers for the Judge also indicate that reliance is placed on an expression of views by L to a dietician in October 2014. The dietician reported L is “very happy to live with Dad”. No real context is provided and I do not place any great weight on this observation.
50 The next piece of information I have concerning L’s wishes is what she is reported as having said to the Independent Children’s Lawyer in May 2016. The interview was conducted over the telephone and, as I have said, at a time when L was excited about her mother coming back to Coastal Town B to live.
51I have no evidence to assist me to dispute the description by the Independent Children’s Lawyer today of her conversation with L. The conversation between the Independent Children’s Lawyer and L was quite perfunctory and in circumstances where L had never previously met the Independent Children’s Lawyer. I place very little weight on this conversation, other than that it accords with the positive relationship that L has with both of her parents and her desire to try to negotiate a safe course between their entrenched conflict and to achieve a result which might be seen as fair to both of them.
52The next information I have relating to L’s views is recent and comes from a report of an interview held here in Coastal Town B only a couple of weeks ago, which was conducted by an experienced Family Consultant. Given its importance, I intend to recite a large portion of the report:
On the 8 November 2016 it was Court Ordered for the child [L] born [in] 2005, age 11 years, to be interviewed by the Family Consultant during the [Coastal Town B] Circuit. It was specifically Court Ordered that the Consultant investigates [L]’s wishes regarding her future living arrangements with emphasis on whether she wishes to continue in the week about arrangement or live primarily with one parent or another. The child-only interview took place on the 9 November 2016 at the … Office. [L] was brought to the interview by her father, [Mr Pawn], and she was interviewed separately and alone. [L] was informed that the interview was not confidential and that the Consultant would be providing a report to the Court about her views and wishes. [L] was informed that she did not have to respond to the questions asked if she did not want the Court or her mother or father to know the answer.
[Mr Pawn] was not interviewed by the Consultant, nor was he provided any feedback after the interview.
This report will provide a brief summary of [L]’s wishes specifically in relation to her living arrangements.
Interview with [L]
[L] is currently in Year 6 and attends … Primary School in [Suburb C]. [L] reported she has been attending the school since kindergarten and has many friends at the school. [L] presented as friendly and talkative, spontaneously responding to questions and on some occasions becoming teary when discussing issues surrounding her care arrangements.
[L] explained that she has been living with each parent on a week about basis for a long time, saying “I’ve been doing it most of my life”. According to [L], even whilst her mother resided in Perth, the week about arrangement was generally facilitated, saying “mum would always fly up… maybe not exactly on that week” but that both parents consistently maintained regular and equal contact with [L] despite living in different towns.
[L] reported both her parents now live in [Coastal Town B], and that her mother resides in “a spare room at her friend’s house”. [L] described an awareness of how her mother feels about living in [Coastal Town B], saying “mum isn’t a fan of [Coastal Town B]. She is only here because I’m here and she wants to see me”. The impression gained is that [L] perceives her mother as having selflessly made the decision to remain in [Coastal Town B] despite a preference to live elsewhere, and this decision appears to make [L] feel important to her mother.
[L] said that she was used to living in a shared care arrangement and has learned to be organised, but admits that it can be “annoying… I have to pack everything”, in order to transition from one home to the other. Handovers typically take place on a Friday, and [L] explained that after school she normally travels back to the parents’ house to collect her belongings before embarking on a new week with the other parent. [L] noted that her parents do not communicate at handover, and said “they only talk about me when in Court… never on the phone… they email… they used to fight a lot but as I got older, they stopped talking. From my point of view, it seems better”.
In relation to her care arrangements, [L] took some time to deliberate her preference and appeared to struggle to voice her views and feelings. [L] said “it confuses me” when she deliberates about her care arrangements, because she is able to perceive the good and not so good aspects of her time with each parent.
With respect to the week about arrangement, [L] said “I like it, but it feels like when I go to one parent’s house, the routines are different and it takes me a while to get into it… and then it changes again”. [L] indicated that the length of her stay in each home was short and she found it difficult to connect on a deeper level with either parent. [L] believes the week about arrangement had one benefit in that “I don’t get bored” and also said “I like that it’s even” but indicated that her preference was to have a stable home and routine, and believes longer period of time with one or both parents would be beneficial.
[L] alluded to her preference to spend longer period of time in her father’s residence but then begun to cry. [L] said “I want to spend time with dad and don’t want her [the mother] to find out because I don’t want her to be hurt”. [L] has formed a view that her mother will be hurt to learn that [L]’s preference was to spend longer periods of time with the father and explained that she knows her mother will be hurt “because my brother moved with his dad… when he did she was really upset… she told me there is nothing keeping her here… she’ll move away and I don’t want her to move away”. The impression gained was that [L] was concerned that her mother may distance herself [Coastal Town B], and consequentially [L], if [L] decided anything contrary to the current arrangement and this was difficult for an 11 year child to emotionally process as she loves both parents equally. [L] said, “If I have less time, less than 2 days or dad has custody, she will move away”.
It would appear that [L] has formed the view that her mother’s living arrangements in [Coastal Town B] are temporary and changeable, and [L] was the key reason her mother returned to live in [Coastal Town B]. [L] is concerned that her relationship with her mother would be compromised in the event that she spend less time with her and has formed the view that her mother’s willingness to live [Coastal Town B] would end, and therefore so would the relationship between [L] and her. [L] said, “If I spend time more with dad, I don’t want her to move away”.
Ideally, [L] said she would like to spend longer periods at her father’s residence, that being approximately 10 days and 1 week in the mother’s residence. The reason [L] prefers to spend longer periods at the father’s residence is because “my dad has always had the same house” and that sense of familiarity and stability appeals to [L]. Alternatively, [L] indicated a view that spending two weeks with each parent would be good, because “it’s longer and equal”, a notion that relates to [L]’s desire to connect with each parent equally and remain stable in one residence for longer periods of time. The impression gained is that [L] is aware of the needs of both parents, and has negotiated a care arrangement that satisfies these needs, without compromising her relationship with each parent. [L] is placed in a difficult position, as she is aware of the fragile nature of her mother’s return to [Coastal Town B], and the risk of losing the connection with her mother is overwhelming for [L]. [L] is an 11 year old child who clearly loves both parents and wants both to remain consistently in her life.
[L] made it clear that she loves both parents equally, and that her relationship with each parent was positive. [L] believes she relates well to both parents, and identifies aspects of her mother’s personality in herself. [L] explained that the Magistrate should decide on her care arrangement, because “it doesn’t sound right when I say it” alluding to the issue that she may hurt either parent with her decision. However, in stating that the Magistrate decide on her living arrangements, [L] made it clear that she does not want to spend any less time than one week with her mother, and some extra days with her father (that being longer than a week) in order to fulfil her need for stability in a primary residence.
[L] said “I don’t want mum to see this [report]… she takes it the wrong way… Mum is an emotional person, she cries at sad movies… I would like mum not to see it”. [L] was particularly concerned about the emotional repercussions her views would have on her mother. Children who have been exposed to high levels of animosity between the parents typically attempt to manage the conflict by appeasing their parents, and like [L] said “I get myself caught in the middle”. [L] does not want to hurt her parents and she does not want to lose access to either parent because of a developmental need for stability, connection and a desire for primary residence. It is important that each parent do not discuss this report with [L] as it may heighten [L]’s anxiety about having spoken to the Consultant about her wishes. [L] yearns for the love and acceptance of both parents and is already struggling with divided loyalties.
53This report demonstrates to me how this little girl is struggling between her obvious strong desire to continue her relationship with her mother and to be fair to both of her parents, but indicating, in my view at least, a clear preference to have a much more stable life not involving regular movement between two homes and also a strong preference to spend more of her time with her father than with her mother.
54Finally, I have the father’s unchallenged evidence that L has reported to him after speaking with the Independent Children’s Lawyer that she wants an arrangement where she spends two weeks with the father and one week with the mother. I also, of course, have the father’s evidence about L being tearful when going to the mother’s home, and the evidence about L’s fear of stating her real wishes about where she wants to reside, and how often, in a way that would become known to her mother.
55L is a mature girl who will turn 12 next year. It is she who has had to put up with the constant weekly movement between the homes of her parents, as well as negotiating their hostile relationship. In my view, and in the view of other experts, very significant weight should be afforded to her views, and I consider that the recent report from the Family Consultant probably provides the best available evidence of those views.
56Although the Independent Children’s Lawyer places much weight on L’s statement to the Family Consultant that she does not want to spend less than one week at a time with her mother, as I have already indicated, the Independent Children’s Lawyer overlooks altogether the possibility that L is afraid of expressing her true opinion. The Independent Children’s Lawyer’s submissions inexplicably ignore L’s statement that she wishes to spend more time with her father than with her mother, and she also overlooks the unchallenged evidence of the father that L is scared of expressing her true opinion.
57I intend to proceed on the basis that L would be able to live with an arrangement where she spent a week at a time with her mother, but I do not proceed on the basis that this is necessarily an outcome that L would actually prefer. In my opinion, this is why L is so adamant that she wants someone other than herself to make the decision.
58This brings me to Exhibits 4 and 5, which have been handed up today. In my opinion, these are very troubling and revealing documents. Both of them seem to be letters from L, one complete and one which tails off into thin air and appears therefore to be incomplete. However, as they were sent by the mother to the Independent Children’s Lawyer and the father as recently as last Friday, it is apparent that they have come into the mother’s possession recently and, significantly, in the period since L spoke with the Family Consultant. I note here that when speaking with the Family Consultant, L was very troubled about her mother being aware of the opinions that she had shared with the Family Consultant. The letters read as follows (errors in original):
Dear mum,
You are the love of my life. I love you more than you love me. I love you so much words cannot discribe. You are the X to my O. I love you always and forever. I love you because you are –
• smart
• funny
• caring
• kind
• nurturing
• Amazing
• Awesome
• fabulos
• strong (meantly and Phickly )
• Brave
• Determind
• and above all you mine and thats that
• you are also super pretty
I love you ever so much and I hope you always know that I have your back.
You mean the world to me.
I can’t picture my life without you nor do I want to. I LOVE YOU
Xoxo [L]
PS there is a forever for you and me
Dear Mum,
I Sorry that I mess everything up. I love you so much and I am really sorry I messed another thin.
59The mother’s interpretation of this letter can be seen from the emails that she sent to the Independent Children’s Lawyer and to the father. Consistent with the mother’s approach in such matters, she blames everyone but herself for the child’s agony that can be seen so clearly in the letters.
60My “take” on these letters is that L realises that she has said something to the Family Consultant that is going to upset her mother. She is now trying to pacify her mother in a way that should happen between the mother and the child, not the child and the mother, and she is trying to let her mother know that she still wants to have a close relationship with her and spend time with her, even though she has “messed up” by telling someone that she really wants to spend much more time with her father.
(b) the nature of the relationship of the child with —
(i) each of the child’s parents; and
(ii) other persons (including any grandparent or other relative of the child);
61I accept in general terms the opinion of Dr N that the father has a “strong relationship” with L. Equally, I accept Dr N’s opinion that the mother has a “good relationship” with L. However, as Dr N points out, L’s relationship with the mother is “somewhat dependent on how her mother presents on the day” and that “some days are better than others”. The conflicted nature of the relationship that L has with her mother is, in my view, evident from Exhibits 4 and 5.
62As I have already indicated, L enjoys what Dr N described as a “comfortable relationship” with Mr U, and Dr N reported that the father was supportive of the relationship between the mother and Mr U.
63The single expert also reported that L has a “strong, positive and highly supportive relationship” with the father’s new wife. Dr N reported that L impressed as seeking out the new wife for comfort and support when her relationship with her parents is not going well. Dr N reported that the relationship should be encouraged and facilitated by both parents, given that L “holds it in such high regard”. Unfortunately, the evidence indicates that the mother is entirely unsupportive of that relationship.
64L has a good relationship with the paternal family and with her half-brother, J. Significantly, it is the father who encourages and maintains the relationship between L and her half-brother; however, I am satisfied that this can be done on any of the proposals currently before the court.
(c) the extent to which each of the child’s parents has taken, or failed to take, the opportunity —
(i) to participate in making decisions about major long-term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child;
65Notwithstanding what is clearly a highly conflictual relationship and notwithstanding the father’s poor opinion of the mother, I am satisfied on the evidence available to me that he is aware of the importance of the relationship between L and her mother, and that he will encourage that relationship, at the very least by ensuring that L sees her mother as regularly as the court orders.
66I am not, however, satisfied that the mother would encourage the child’s relationship with the father. She is in a highly conflictual relationship with him, perceives him as a person of no worth, and would not go out of her way to ensure that the child grew up having a loving relationship with him. I am satisfied that the father only has such a relationship with the child in spite of, rather than because of, the mother.
(da) the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child;
67The father has provided regular child support to the mother, even though he has been caring for the child the majority of the time up until this year. Quite apart from providing for L’s financial needs by way of child support and by way of looking after her when she is in his care, it is apparent that the father is also the person responsible for meeting what would be expenses that otherwise might ordinarily have been equally met, for example, her schoolbooks.
(d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from —
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
68The orders that I am considering making will not end the relationship between either the father and the child, or the mother and the child. The worst that would happen is that the mother would continue to see the child four days a fortnight, and that would be adequate for her to maintain a meaningful relationship. Similarly, if the existing arrangements continued, that would provide ample opportunity for both parents to have a meaningful relationship with the child.
69The likely effect on L of spending more time with the father is that she will be in a more stable and secure setting. However, there is one other possible effect of a change in circumstances which troubles me considerably, and that is that if the mother’s time with L was to be reduced significantly, or perhaps even at all, the mother might decide to leave [Coastal Town B] and thereafter spend sporadic time with the child as she has had in the past, or spend no time with her at all.
70In this regard, it is very concerning that the mother has said to the court expert that if she loses the proceedings in the Family Court, she will go overseas. It is entirely unclear what the mother would do to continue her relationship with L in those circumstances, particularly in light of the history of the termination of her relationship with her son. Accordingly, this factor unfortunately has to weigh heavily in the mind of the court.
(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
71This is not a problem whilst the parents are both living in Coastal Town B, because Coastal Town B is a small place and the parents live quite close together. There is no difficulty, for example, in L continuing to attend the same school, and in continuing an arrangement which has worked fairly satisfactorily in the period since the mother has returned to Coastal Town B.
72The practical difficulty and expense would come into play in the event that the mother was to move away from Coastal Town B again. Coastal Town B being such an isolated place, there would be great difficulty and expense, even if the mother was to live in the nearest significant town away from Coastal Town B. When the mother was living away from Coastal Town B previously, she was able to maintain a fairly regular visiting arrangement to Coastal Town B, but it is entirely unclear what arrangements she would make for accommodation in those circumstances.
(f) the capacity of —
(i) each of the child’s parents; and
(ii) any other person (including any grandparent or other relative of the child),
to provide for the needs of the child, including emotional and intellectual needs;
73The evidence of [Mr P] indicates that the mother is able to make adequate arrangements for L’s care, although the court does not have adequate evidence in that regard. Certainly, the father has demonstrated a longstanding ability to provide what appears to be high quality care for the child.
74My main concern under this heading is in relation to L’s emotional needs. I was particularly struck when I read Mr C’s description recited above of the relationship that was evident between the father and the child when the little girl was only about 2 years of age. It is apparent that the father has a great capacity to provide for the child’s emotional needs.
75I was equally struck when reading the description of the relationship observed by Mr C between the mother and the child. He reported in these terms:
[Ms Higgins’] session with [L] was straight after that of [L]’s with her father. Throughout the session [L] kept asking her mother if she could go and stay or see her father. [Ms Higgins] was having none of this and explained to her “no, you’re not, you’re with me for 3 weeks like he had you for 3 weeks”.
[L] drew during the session with her mother who utilised the session to make comments about not enjoying walking in the middle of the day with the child etc. In this session the mother was quite cynical about the assessment process and kept talking about the “important performances” and “important stuff”. She focussed very little on the child and [L] focussed little on her apart from asking her if she could go and stay at her father’s, which was basically ignored after the initial comment.
[Ms Higgins] has a good relationship with [L] but in this situation was rattled by the child’s continued requests about the father and her own anxiety about the assessment process.
76I note, however, the description of Dr N about the time that the mother spent with the child whilst under inspection for a period of little over 30 minutes:
95.The observation was conducted at [Place A] and the mother greeted me warmly on arrival. She introduced me to her partner, [Mr U]. I noted that her presentation was in stark contrast to that of the interview. She presented as affectively more stable, happy and pleasant.
96.I noted that [L] tended to direct the play by leading her mother and [Mr U] through the exhibits. [L] presented as comfortable with her mother and was noted to point things out and discuss them. I noted good eye contact and an ease of conversation that was mostly initiated by [L]. I noted smiling and some giggling from [L].
97.I noted that [L] appeared comfortable with [Mr U] and would often seek out close physical proximity to him. She would often engage him in conversation. I noted at one point she walked off with [Mr U] to the next exhibit without the mother and appeared comfortable in doing so.
98.Overall, I noted a secure attachment bond between [L] and her mother. There was a natural and comfortable physical proximity between [L] and her mother; and [L] and [Mr U]. [L] tended to initiate the conversation and it was easy and free-flowing.
77All of this leads me to have some doubts concerning the mother’s capacity to provide for the child’s emotional needs. The mother’s personality is somewhat problematic, as evident from the descriptions of her behaviour and the psychological testing which she has undertaken during these proceedings. For example, the mother was described by Dr N as abrasive and unpleasant. This is the way she has presented to more than one expert. The mother behaves in a similar fashion towards the Independent Children’s Lawyer and the father’s lawyer. Yet there is no indication of that in the information provided by Mr P, which is drawn from the information given to him by the teachers at L’s school.
78What appears to me from the evidence is that from time to time, and perhaps most of the time, the mother is able to conduct herself in an appropriate way, but her emotional volatility is such that she occasionally acts out. It would seem almost inevitable that L would be exposed to this, which would be damaging for the child’s emotional wellbeing.
79All things considered, I have no doubt that the father is more capable than the mother of providing for the child’s emotional needs, but the mother is capable of providing for one of the child’s most basic and important needs, and that is to provide love and affection for the child.
(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;
80There is little to be said about this, other than that L is fast maturing. She has or will soon be entering puberty. There is no indication that the father is not able to provide for her needs during this time. L’s maturity is also significant because that, in turn, reflects upon the importance that I should place on her wishes.
81L has [an Asian] background in that her maternal grandparents are Asian, but it has not been suggested that this is a matter of importance in these proceedings.
(h) if the child is an Aboriginal child or a Torres Strait Islander child —
82L is not of Aboriginal or Torres Strait Islander descent.
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
83I think each of the parents has demonstrated a good attitude to L and the responsibilities of parenthood because they have attended to her physical needs. They have ensured that she has gone to school and they have taken considerable interest in her schooling.
84However, the mother has demonstrated a poor regard to her obligations as a parent by threatening to go overseas in the event that she loses these court proceedings, when there has never been any suggestion that she would be entitled to anything other than very regular contact with L if she was to remain in Coastal Town B or even move to Perth.
(j) any family violence involving the child or a member of the child’s family; and
(k) if a family violence order applies, …
85There is no evidence of family violence in more recent times, although there have been some troubling incidents in the past relating to breaking car windows and the mother’s invasion of the home of the grandmother where her other child was living. These are not matters of great significance in determining the dispute I currently have before me.
86There is no evidence of any family violence order.
(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
87Of course, it is always desirable to make such an order. The trick is in knowing what that order might be. This is not a factor that I consider of significance in comparison with the other matters to which I have referred in these reasons.
(m) any other fact or circumstance that the court thinks is relevant.
88One issue that has taken up a lot of time in correspondence, in conflict and in expert reports has been the issue of L’s weight. L is a big girl for her age. She was on the 97th percentile at one point, and both parents at different times have been very concerned about her weight and about the possibility of her, for example, developing diabetes.
89Whilst there have been exchanges of opinion between the parents about where the fault lies in this regard, the most important question is what is being done to ensure that L’s weight is kept under control. In my view, the evidence establishes that the father has been seeking out appropriate medical treatment for L; that he has been ensuring as best he can that L adheres to the regime that is laid down for her; and, most importantly, that L’s weight gain has stabilised in the sense that she is not putting on weight, and has actually lost a little weight in recent times.
90The mother is not satisfied with L’s progress in this regard and believes that L should be placed on diets. It appears the mother’s views about L’s dietary needs change from time to time. The mother’s opinions in this regard appear to me to be in conflict with the advice from the dieticians and paediatric consultants who have been involved. Their opinion is that L should be permitted to grow into her weight. The father accepts the opinion of the experts and this is what he has been successfully doing, noting that L is only with him half of the time.
91I think it is at least of some significance that the May 2016 report that was handed up today from [Dr T], the paediatric consultant, noted that L said things were going well overall for her. She said that she had previously been in a regular exercise pattern, but had fallen out of the habit somewhat since being away from Coastal Town B. I am not sure precisely to what L was referring, but the only significant time as far as I am aware that she has been away from Coastal Town B was earlier this year. In any event, the report from Dr T otherwise indicates that L’s obesity management has been undertaken successfully.
92I am satisfied that in the event that L was to spend more time with her father, he would continue to do what he has done to date in keeping her weight under control.
93I am not aware of any other matters of relevance.
Conclusions
94The Independent Children’s Lawyer and the father are in agreement that there should be an order for equal shared parental responsibility. This seems quite surprising given all of the evidence which shows that the parents are completely incapable of reaching agreements in relation to matters concerning L, let alone any matters of significance. However, the father’s counsel has explained to me today that decisions have been made in the past for L, and that there are probably not many decisions needing to be made for her in the future. It is apparent that the father has been able to work with a shared parental responsibility order and anticipates pragmatically being able to do so in the future. He therefore does not seek to make a point about this. In my view, that pragmatic solution is the appropriate one. Notwithstanding my reservations about the parents not being able to reach agreements, I will make the order that the father and the Independent Children’s Lawyer are proposing.
95This then requires me to consider, as I explained earlier when discussing the law, whether or not an equal time arrangement would be in the child’s best interests and reasonably practicable. Such an arrangement is reasonably practicable, notwithstanding L’s understandable great reservations about it. The Independent Children’s Lawyer also places great weight on this in her submissions in saying that the arrangement has been working and that it should therefore continue. However, the critical question is whether the arrangement is in L’s best interests. I am satisfied that it is not. L does not want it to continue. It is evident from reading the report of the Family Consultant that L is even prepared for her mother to know that she wants to spend more time with her father.
96The real question is what is L’s true wish about how much more time she wants to spend with her father. Of course, she has reported to her father that she told the Independent Children’s Lawyer that she wanted to spend two weeks with him at a time and a week with her mother, but I cannot be sure that that is an accurate statement of wishes.
97All that I can be sure of on the information available to me is that L is quite anxious to end the equal shared time arrangement and spend more time with her father. Given her age and maturity, I consider that her wishes should be given full weight and are one of the most significant matters in my decision. L has explained to the Family Consultant the difficulties associated with such an arrangement, and whilst such orders are made and quite often appear to work successfully, one can only imagine how difficult it is for a child to be moving home every week, particularly in the circumstances described by L in the report.
98The other reason I consider that L should spend more time with her father than her mother is because I am satisfied that, considered overall, the father makes better arrangements for L than the mother does. Putting entirely to one side the fact that I have no idea whether L even has a room of her own in the home in which she lives with her mother, it is apparent that the father is more attentive to arranging appropriate extracurricular activities for L; that he is fastidious in ensuring she attends those activities; that he understands the benefits to her of those activities; and that these include not only arranged activities, but also involvement with L’s friends, who are clearly important to her.
99The mother, on the other hand, appears to be focused on her own interests and her desire to spend time with L, because she perceives L’s relationship with her as being the matter of greatest importance and she is not prepared to facilitate and encourage the extracurricular activities that the father is arranging.
100All of these matters point towards an arrangement where L spends more time with the father than with the mother. However, this brings me back to the concern that I expressed earlier about the mother’s likely reaction to L spending less time with her than she currently does. There is a very cryptic remark by L in the report from the Family Consultant where she said “If I have less time, less than two days, or dad has custody, she will move away”. That statement did not come out of thin air. L is very perceptive to the dynamics within her family. She is attuned, it would appear, to her mother’s views about matters, and she would only have said this if her mother had threatened this as an outcome that would occur in the event that the mother’s time was reduced.
101I do not have a crystal ball and I therefore do not know what the mother’s reaction will be to my decision, but it seems apparent and certainly logical that the greater the reduction in the mother’s time with L, the greater the probability that the mother will be grossly offended and decide to demonstrate her upset by moving away. In my view, that will have an incredibly damaging impact upon L, and I fear that in those circumstances, L would blame herself for the fact that her mother has left town.
102It needs to be stressed that my decision is not based only on what L wants or has said she wants, but upon my perception of which of the parents is able to make more satisfactory arrangements for L. In that regard I am doing what L has asked me to do, and that is for me to make the decision not based on what L has said, but based on what I think is an appropriate outcome.
103I have discounted an equal shared cared arrangement, which I consider not to be in L’s best interests. That includes week about and it also includes two-week about. The other alternative that I should consider is the one that L has expressed to the Family Consultant where she spends 10 days with her father and a week with her mother. There are two problems with that proposal.
104The first is that I am simply not satisfied that is what L wants. I see it merely as a representation of her negotiating an outcome that she thinks her parents will be able to live with, but particularly her mother will be able to live with. I do not treat it as one necessarily reflective of her views.
105The second concern I have is a practical one. It is an arrangement which does not have a regular routine in that it is not associated with school weeks. There would be a rolling calendar and it will be difficult to work out in advance where L is meant to be. This is likely to lead to further conflict between the parents, because given their history, one can see regular misunderstandings arising about when the handover is meant to be.
106Whilst I am not entirely convinced that it is in L’s best interests to continue to spend a week at a time with her mother because of the uncertainty about her accommodation arrangements, it is apparent that this is an outcome that L could live with, and accordingly my decision is that L should spend two weeks at a time with her father, followed by a week with her mother. This would mean that she would spend at least three weeks a term living with her mother, but the majority of the time living with her father. It will at least give her periods of two weeks at a time where she can settle in very well into a routine with her father and this will reduce significantly the number of times that she has to move home.
107As for the orders that should be made in the event that the mother moves away from Coastal Town B, as I have noted before, the father’s proposal was for one week each school term, whereas the Independent Children’s Lawyer’s preference was for at least one week every month. In my view, the father’s proposal is not sufficient. It might be in other cases, but in this case I do not consider so.
108First, the mother has shown in the past a capacity to come to Coastal Town B more often than once a term. Secondly, I am not satisfied that seeing her mother for only one week in each term in between school holidays would satisfy the very strong yearning that L has to spend time with her mother. I consider that L should spend two weeks each school term with her mother in periods of one week at a time in the event that the mother is able to make satisfactory arrangements in Coastal Town B for L in that period. This would continue to be dependent upon the mother giving proper notice of her intentions.
109I have already indicated the order that is currently in place, but I have a preference for the order that is proposed jointly by the father and the Independent Children’s Lawyer that the mother gives notice of her intention of coming to Coastal Town B and sufficient notice so that the father has at least some warning of her arrival. The mother’s compliance with that order would be required before the father would be under any obligation to permit the mother time with L.
110The other matter I need to mention is the proposal of the father in relation to a passport. The father has given convincing reasons in his affidavit as to why he should be able to travel overseas during his time with L, particularly given the connection the father now has with Asia. On the evidence, the father is not in any way a flight risk and I am satisfied he would return L to Australia. I see no need for the passports to be held by the Family Court and they can be held by the father.
Orders
1.The Family Report of Family Consultant dated 16 November 2016 be released to the Respondent father, [MR PAWN], and his solicitor.
Parental responsibility & parenting
2.All previous parenting orders be and are hereby dismissed.
3.The Applicant mother, [MS HIGGINS], and father have equal shared parental responsibility for the care, welfare and development of the child, [L] born [in] 2005
4.Subject to Orders 6(h), 12, 13 and 14, each parent will be responsible for day to day decisions concerning the care of [L] when [L] is living with them or spending time with them.
5.[L] live with the father.
Contact by the Mother:
6.The mother spend time and communicate with [L] as follows:
If the Mother is living in [Coastal Town B]:
(a)During school term, every third week, from the commencement of school Monday to the conclusion of school the following Monday, commencing 13 February 2017 (and recommencing the second Monday in every school term thereafter).
(b)For one half of each term school holiday period for the first week in even years and the second week in odd years;
(c)For one half of the summer school holidays for the first half in even years, commencing on the last day of the school year and concluding on January 2 at 9.00 a.m. and for the second half in odd years commencing at 9.00 a.m. on January 2 and concluding at 9.00 a.m. two days before the commencement of the new school year;
(d)If Mothers’ Day falls on a weekend when [L] is not already spending time with the mother, from 5:00 p.m. on the Saturday before Mothers’ Day until 5:00 p.m. on Mother’s Day;
(e)On each of [L]’s and the Mother’s birthday for a minimum of two hours if the birthday falls on a school day and a minimum of four hours if the birthday falls on a non-school day;
PROVIDED THAT the mother’s time with [L] be suspended if Father’s Day falls on a weekend when [L] is to be spending time with the mother from 5.00 p.m. on the Saturday before Father’s Day until 5.00 p.m. on Father’s Day.
If the Mother is living in Perth (or anywhere else outside of [Coastal Town B]):
(f)For one half of each term school holiday period for the first week in even years and the second week in odd years.
(g)For one half of the summer school holidays for the first half in even years, commencing on the last day of the school year and concluding on January 2 at 9.00 a.m. and for the second half in odd years commencing at 9.00 a.m. on January 2 and concluding at 9.00 a.m. two days before the commencement of the new school year.
(h)In [Coastal Town B], upon the Mother giving the Father (not [L]) no less than 14 days’ written notice of her intention of spending time with [L] and provided that any such period not exceed one week at a time, on no more than two occasions per term, and on the basis that the Mother take [L] to any extra-curricular activities [L] usually attends and that [L] attends school and provided further that the time falls outside the holiday time that the Father is to spend time with [L].
Costs of Contact
7.The Mother bear sole responsibility for the costs of [L] travelling between [Coastal Town B] and Perth, if applicable, for the purposes of the Mother spending time with [L].
Handover
8.If the mother is living in [Coastal Town B], changeover take place at the school if during the school term and if outside of the school term with the mother collecting [L] from the father’s home at the commencement of her time with [L] and the father collecting [L] from the mother’s home at the conclusion of her time with [L]. If the parents are in Perth for the handover, then the handover will be at the home of the father’s brother [Mr J Pawn].
Telephone Contact
9.Each parent encourage and facilitate telephone communication between [L] and the other parent while [L] is in their care as requested by [L] but no less frequently than once every three days.
Contact Details
10.Each parent keep the other informed of their current residential address, mobile and landline telephone numbers and any available email addresses and advise the other parent of any change thereto within 7 days of such change.
Health Issues
11.In the event of childhood illness or emergency the parent with whom [L] is with, contact the other parent forthwith to inform them.
12.The parents each facilitate [L]’s appointments with the paediatrician, dietician or any other medical professional she is seeing by either taking [L] to such appointments if [L] is in their respective care or, alternatively, if either of them is unable to take [L] to such appointments when [L] is in their care, upon that parent giving the other parent no less than 24 hours’ notice of her their inability to take [L] to such appointments the other parent will collect [L] from the parent she is living with/spending time with and take her to the appointments.
13.The parents follow all recommendations and guidelines of the dietician and/or paediatrician and/or other health professional in relation to [L].
14.The parents facilitate [L] attending any sporting or extra-curricular activities that she is engaged in if such activities are scheduled during [L]’s time with them.
Non Denigration
15.Each of the parties, their servants and agents be restrained and an injunction is hereby granted restraining them from:
(a)Abusing, insulting, belittling, rebuking, or otherwise denigrating the other party; and
(b)Discussing these proceedings or the contents of any documents filed in or intended for use in these proceedings or from showing any such documents to, with or in the presence or hearing of [L], and from permitting any other person to do so.
Education
16.Both parents be permitted to liaise directly with [L]’s school and sporting bodies to receive school notices, information, newsletters, school reports, school photographs and any other necessary information about [L]’s progress.
17.Each party is at liberty to attend at [L]’s school for the purposes of any function or activity normally attended by parents.
Passport and travel
18.The consent of the Mother to the issuing of a passport for [L] be dispensed with and, subject to the requirements of the Australian Government Department or Agency which issues or has the power to issue passports, a passport do issue for [L] without the consent of the Mother.
19.The Father pay the costs of such passport application and any renewal thereof. Upon the issue of the passport, the father hold [L]’s passport and provide the Mother with a certified copy thereof within 7 days of receipt.
20.The Father have liberty to remove [L] from the Commonwealth of Australia during any school holiday time wherein [L] would ordinarily be in his care for no longer than the duration of his share of the school holiday period and provided that he give the Mother, no less than 7 days after to the booking of such holiday and within 30 days from the proposed travel date, full details of where [L] will be going, when she will be returning, where she will be staying and providing a telephone contact number as well as providing a copy of the itinerary and confirmation of booking for air ticket and PROVIDED that are no “do not travel” warnings current for the proposed period of travel.
21.The parents communicate with each other by text or email except in the case of emergency whereby they will communicate with each other by telephone.
22.All applications and responses before the Court be otherwise dismissed.
23.The subpoenaed documents be returned to source.
I certify that the preceding [110] paragraphs are a true copy of the reasons for
judgment delivered by this Honourable Court
Associate
28 November 2016
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